Fulbright & Jaworski, LLP published recently its 2012 International Arbitration Report, Issue 2. Topics in this issue include: How to Optimize Your Expert Evidence The Law Governing the Arbitration Agreement Damages for Breach of an Agreement to Arbitrate Section 1782 Held Applicable to Private Arbitrations You may download the Report (free of charge) here.

by Jeremy Clare Magistrate Judge David Waxse of the United States District Court for the District of Kansas denied two applications for search warrants in which the government sought to gain emails and faxes from accounts used by an individual that allegedly used the accounts in an email spam campaign to defraud other individuals. Magistrate Judge Waxse denied the applications because the warrants, as proposed, violated the Fourth Amendment. In In the Matter of Applications for Search Warrants for Information Associated with Target Email Address, 2012 WL 4383917 (D. Kan. Sept. 21, 2012) the United States applied for two search warrants that would require two providers of electronic communication services, Yahoo! and UnityFax, to disclose copies of electronic communications and other account information for an email account identified in the applications. The government alleged that the accounts were used in a scheme to commit wire fraud. The proposed search warrants identified two categories of information: (1) information to be disclosed by the providers of electronic communications services to the government under 18 U.S.C. § 2703, and (2) information to be seized by the government. Relevant portions of the applications were provided in the order. Essentially, the applications asked for all records, documents, and information associated with the email account. A government-authorized person would then review the information and determine what constituted evidence against the individual. Magistrate Judge Waxse started by reviewing relevant law including the Fourth Amendment requirements and its application to stored electronic communications. He noted that any warrant, even those for electronic information, must particularly describe the place to be searched and the persons or things to be seized, be based on probable cause, be reasonable in nature of breadth, and be supported by affidavit. The magistrate judge then provided an analysis of several different cases that previously addressed the issue of search warrants for electronic information. However, he noted that there are many cases addressing the particularity requirements as to computer searches, but little guidance on the issue of search warrants seeking email or fax communications stored in an account provided by an electronic communications service provider, as was the case here. Magistrate Judge Waxse did find three previous district court decisions that addressed the issue in this case. In all three cases, those courts denied the respective motions to suppress, rejecting the argument that the warrant applications lacked sufficient particularity in describing the items to be seized. The magistrate judge disagreed with those findings and found that the warrants proposed by the government violated the Fourth Amendment. He first reasoned that the applications were too broad and too general because they failed to set any limits on the communications and information sought. The applications failed to limit the warrants to information in relation with the specific crimes being investigated. He found that the government did not show probable cause for the breadth of the warrants sought. Magistrate Judge Waxse also found that the government failed to identify any sorting or filtering procedures for the potentially large amount of information that did not involve a government agent seeing all the information provided, including all information that would not fall within the scope of probable cause and information that contained attorney-client privileged communications. The magistrate judge thus found that the warrants violated the Fourth Amendment.   Jeremy Clare is a law clerk at Karl Bayer, Dispute Resolution Expert. Jeremy received his J.D. from the University of Texas School of Law in 2012 and received a B.A. from the University of South Carolina where he studied political science.  

  Forbes has an interesting article regarding the recent FINRA arbitration Lehman Brothers Holdings v Adam David Sloan (FINRA Arbitration 11-01774, October 17, 2012): In a Financial Industry Regulatory Authority (“FINRA”) Arbitration Statement of Claim filed in May 2011, Claimant Lehman Brothers sought to recover by the close of the hearing $357,142.86 in outstanding principal; $79,244.88 accrued interest; and $53,571.43 in collection costs. Continue reading at Forbes.

  The Harvard Program on Negotiation (PON) has discussed this issue recently: Many scholars have noted that the business community would greatly benefit from third-party dispute resolution services. The problem is, there isn’t much demand for mediation or arbitration. If the alternative dispute resolution field has in fact built a better mousetrap, why isn’t the market buying it? Continue reading at the Harvard Program on Negotiation.